Supreme Court to Review SEC ALJs

On January 12, the US Supreme Court agreed to review the constitutionality of the SEC’s administrative law judges.

On November 29, 2017, the SEC did an abrupt about-face, telling the Court it now regards its ALJs as inferior officers and no longer would defend the lower-court decisions against Lucia. The next day, the SEC itself ratified the appointments of its ALJs. Nevertheless, the Commission argued that the Court should grant cert, appointing an amicus to defend the D.C. Circuit’s opinion and considering the “for-cause” removal requirement for current ALJs.

It remains to be seen whether the Court takes a narrow or expansive review of the case. A broad view could affect ALJ decisions across the administrative state.